Appeal No. 2006-0227 Page 17
Application No. 10/121,264
place to another is immaterial – the specification’s definition merely requires that the
transfer agent be capable of transporting genetic material, not that it actually be used to
do so.
We affirm the rejection of claim 24 as obvious in view of Chu, Sabatini, and
Kausch. Since our reasoning again differs from that of the examiner, however, we
designate our affirmance a new ground of rejection in order to give Appellants a fair
opportunity to respond.
Summary
We affirm the rejection of claim 40 as anticipated by Chu. We also affirm the
rejections based on obviousness but we designate those affirmances as new grounds of
rejection because our reasoning differs from that of the examiner.
Time Period for Response
Regarding the affirmed rejection, 37 CFR § 41.52(a)(1) provides "[a]ppellant may
file a single request for rehearing within two months from the date of the original
decision of the Board."
In addition to affirming the examiner's rejection(s) of one or more claims, this
decision contains a new ground of rejection pursuant to 37 CFR § 41.50(b) (effective
September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz. Pat. Office
21 (September 7, 2004)). 37 CFR § 41.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
37 CFR § 41.50(b) also provides that the appellant, WITHIN TWO MONTHS
FROM THE DATE OF THE DECISION, must exercise one of the following two options
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